In terms of TRAI’s own words –

“The Department of Telecommunication (DoT) vide a reference letter dated March 3, 2016, sought the recommendations of the Telecom Regulatory Authority of India (TRAI / the Authority) on Net Neutrality including traffic management system, economic, security and privacy aspects of OTT services apart from other relevant standpoints covered in the TRAI’s consultation paper on Regulatory Framework for Over-the-top (OTT) services issued earlier on March 27, 2015″. In light of the complexity of issues, referred to in DoT’s letter, and other interrelated issues, the Authority chose to deal with specific isues through distinct consultation processes.”

In furtherance to the same, TRAI on 12th November, 2018 released a Consultation Paper on ‘Regulatory Framework for Over The Top (OTT) Communication Services’.

I take this opportunity to tender my views on the Consultation Paper on Regulatory Framework for Over-The-Top(OTT) communication Services.

The Indian OTT market is currently valued at $109 million and is expected to double by 2020 to $218 million. However this OTT market in India currently is very broad and it includes a host of players which deal in one to one communication, communication to a set of players as well as mass communication. While Platforms like Whatsapp, SMS, Facebook Messenger are examples of OTT services that allow for private communication, platforms like Netflix, Hotstar, Amazon Prime, Sony LIV among others are platforms that while relying on internet provide mass communication services to its users. As given in the TRAI consultation itself, the Body of European Regulators for Electronic Communications defines OTTs broadly as “content, a service or an application that is provided to the end user over the public Internet” and categorized in three categories-

OTT-O: which indicates OTTs that qualify as electronic communication services under extant definition

OTT-1: which indicates OTTs that do not qualify as services but potentially compete with traditional Telecom service providers

OTT-2: a residual category of services that do not qualify as services but do not compete with traditional Telecom Service Providers

As made very clear by TRAI, the present Consultation is limited to OTT-1 i.e. OTT Services that potentially compete with Telecom Service Providers.

We believe that the present consultation and endeavour of TRAI to regulate OTT platforms especially those which compete with Telecom Service Providers are also stemming from the ongoing disputes and court cases filed against WhatsApp by some aggrieved Petitioners. In the said case, on being asked to explain their position, the Department of Telecom (DoT) is reported to have told the Supreme Court that Over-The-Top (OTT) services, like WhatsApp, Facebook, Skype and WeChat will soon be subjected to a regulatory framework, similar to the existing framework for telecom service providers. Thus, the Government, as per its stance in Court is now is seeking regulation to ensure better privacy for such users, however, the actual effect may be the opposite. The existing privacy granted to current users through end-to-end encryption may be lost for the close to 200 million users of such services in India.

There is another point of view that states there was no issue of privacy involved as it is a matter of contract between the user and OTT service provider. It has been argued successfully that that no privacy violation is possible as messages sent on WhatsApp were end to end encrypted preventing even WhatsApp from reading them.

The cause of concern here is the fact that regulating OTTs and privacy, at least in this case, may clash with the idea of Net Neutrality. While February 2016 saw TRAI take a revolutionary decision, prohibiting telecom service providers from levying discriminatory rates for data, thus ruling in favour of Net Neutrality in India, the regulation of OTTs under the pretext of privacy is problematic. Yes, privacy is paramount; but the regulation of OTTs in the same spirit as that of telecom operators will be a short step away from regulating them as separate services.

The fact that OTT Platforms under consideration in this Paper provides free telephony, messaging and data services.  The priority, as revealed in TRAI’s Consultation Paper on OTT services, is to create a level playing field between the telecom service providers (TSPs) and the OTTs. The two seem to be at odds with each other as it cannot be the case of a Regulator to create a level playing field between a paid service and one that is given to users for free.

Issues of security are also discussed, not in terms of protecting people, but in terms of enabling lawful interception and surveillance. The result is that for privacy, encryption is mandatory, but for security, decryption should be possible. TSPs, for example, are permitted to use only 40-bit encryption under their license agreements, a much lower level than that used by WhatsApp. Moreover a decryption key is to be deposited with TRAI, to enable decryption as required. A similar approach was seen in the now withdrawn Draft Encryption Policy, where, entities like WhatsApp were mandated to comply with decryption requests.

The lack of a focus on privacy and security shows that the DoT’s regulation may not achieve this. Instead, regulations for OTTs may well bring an end to WhatsApp’s end-to-end encryption, the only privacy people have with such platforms at the moment.

Thus at a time when the focus is being made towards ease of doing business and opening up sectors and freeing them from clutches of over-regulation, TRAI will do well to not encourage regulations in a sector that is well within the self regulation regime especially when they cannot be treated at par with their competition i.e. Telecom Service Providers as it is akin to an apples to oranges comparison.

Article by

Advocate Sushant Chaturvedi

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